Date: 20040308
Docket: A-240-02
Citation: 2004 FCA 98
BETWEEN:
WILLIAM LLOYD HAMILTON
Appellant
- and -
DRIFTPILE FIRST NATION BAND COUNCIL
Respondent
Assessment Officer
[1] The Canadian Human Rights Commission dismissed the Appellant's complaint that the Respondent had discriminated against him, relative to employment, by reason of his age and race. The Federal Court dismissed the Appellant's application for judicial review of that decision, and in the course of its hearing, held that his attempted motion therein raising constitutional and procedural issues was not properly before the Court and refused to deal with it. The Appellant then brought a motion in the Federal Court for reconsideration under Rule 397, including a request for the judge to recuse herself. That motion was dismissed. This appeal addressed this latter dismissal order and included an attack upon the order dismissing his application for judicial review. The appeal was dismissed with costs. I issued a timetable for written disposition of the Respondent's bill of costs.
[2] The Respondent's bill of costs claimed the maximum in the ranges for counsel fee items 19 (Memorandum of Fact and Law), 21(a) (motion regarding Appeal Book contents), 22(a) (appearance of first counsel at the hearing of the appeal) and 26 (assessment of costs) plus $197.85 for photocopies claimed at $0.25 per page or less pursuant to Moloney v. Canada, [1989] 1 C.T.C. 213 (F.C.T.D.). The Appellant asserted that he feels cheated by the Court and argued that the substantive issues of this litigation remain unresolved and therefore costs should not be payable. The Appellant objected to the claims for maximum values in the ranges for counsel fees and asserted that the claim for item 22 is double the permissible amount. The Appellant asserted that the Respondent's evidence is inadmissible hearsay and should be disregarded.
Assessment
[3] Rule 400(1), which vests full discretionary power in the Court over awards of costs, means that orders and judgments must contain visible directions that costs have been awarded. Given the Federal Courts Act, ss. 3 and 5(1) defining the Court and Rule 2 of the Federal Court Rules, 1998 defining an assessment officer, the absence of that exercise of prior discretion by the Court leaves me without jurisdiction under Rule 405 to assess costs. Here, the order dated June 24, 2002, denied the Appellant's motion for determination of the contents of the Appeal Book, but was silent on costs thereby precluding a claim for costs for this interlocutory proceeding. In Webster v. Canada (Attorney General), [2003] F.C.J. No. 1652 (A.O.), I concluded that the Rule 400(1) discretion in the court for interlocutory costs is exercised independently from the result of the judgment, except where expressly provided by language such as "costs in the cause". Given the general opposition to costs advanced by the Appellant, I must disallow the item 21(a) claim. The evidence is clear that the $197.85 claimed for photocopies addresses the Memorandum of Fact and Law and therefore it does not appear that there are any disbursements associated with this motion that should be removed.
[4] I concluded at paragraph [7] in Bruce Starlight et al. v. Her Majesty the Queen, [2001] F.C.J. 1376 (A.O.) that the same point in the ranges throughout the columns in the Tariff need not be used as each item for the services of counsel must be considered in its own circumstances and that some generalization is required between the available values in ranges. I have read the court record. One of the issues was whether there was a reasonable apprehension of bias on the part of the Federal Court judge below. Further to the circumstances of dealing with a self-represented litigant on such a sensitive issue, I think an allowance of 6 units (available range is 4-7 units) and 3 units (available range is 2-3 units) respectively for items 19 and 22(a) are warranted. The Appellant's submissions asserting that item 22(a) was claimed at double the proper amount were incorrect. As for item 26 (available range is 2-6 units), although I think that this assessment of costs was not particularly difficult, I also think that the Appellant's materials were not particularly focused or relevant: I allow 5 units. The Respondent's bill of costs, presented at $2,971.29, is assessed and allowed at $2,212.60.
(Sgd.) "Charles E. Stinson"
Assessment Officer
Vancouver, B.C.
March 8, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-240-02
STYLE OF CAUSE: WILLIAM LLOYD HAMILTON
Appellant
- and -
DRIFTPILE FIRST NATION BAND COUNCIL
Respondent
ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES
REASONS FOR ASSESSMENT OF COSTS: CHARLES E. STINSON
DATED: March 8, 2004
SOLICITORS OF RECORD:
Laird Armstrong
Calgary, AB for Respondent